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Federal Contractors Face June 21 Deadline to Notify Employees of Their Rights to Join a Union

Beginning June 21, 2010, federal contractors and subcontractors must notify employees of their rights to join a union and their rights under the National Labor Relations Act. Failure to comply may result in the cancellation, termination, or suspension of any contract.

Shortly after taking office in January 2009, President Obama issued Executive Order 13496 requiring government contractors and subcontractors to notify employees of their rights under the National Labor Relations Act (NLRA), which governs relations between unions and private employers. The purpose of the Order was ostensibly to "promote economy and efficiency in government procurement" by ensuring that government contracts are performed by "contractors whose work will not be interrupted by labor unrest." The Order explains that "[r]elying on contractors whose employees are informed of their rights under federal labor laws facilitates the efficient and economical completion of the Federal Government's contracts" and sets out mandated language for inclusion in contracts and subcontracts. It also directs employers to post a Notice informing employees of their rights under the NLRA. The Order delegates to the Secretary of Labor the task of preparing regulations and the Notice.

Business community reaction: Biased toward unions.

Comments from the business community indicated that the proposed language was "strongly biased towards union organizing efforts" and provided minimal information for employees "about their rights not to join or to decertify an existing union." Likewise, the proposed Notice provided information regarding employer unfair labor practices but failed to address union unfair labor practices. The U.S. Chamber of Commerce, in comments published in the Federal Register, stated that "it is our assessment that almost every substantive sentence of the notice is an incomplete or inaccurate statement of the law that is presented in a less than balanced manner." Predictably, union response to the proposed regulations and Notice language was overwhelmingly favorable.

Result: Rule revised.

On May 20, 2010, responding to widespread characterizations of the proposed rule and poster as too "pro union," the Office of Labor-Management Standards published a revised final rule1  implementing the Order's mandate that federal contractors and subcontractors notify their employees of their rights under the NLRA. The language of the revised mandated Notice lists employee rights and sets out separate activities that, when engaged in by either employers OR  unions, are illegal under the NLRA. The Notice also provides the National Labor Relations Board contact information for employees who feel that their rights have been violated and explains that the NLRA "covers most private-sector employers" and lists specific exclusions. The Notice does not mention the right to a representation election.   

Posting deadline is June 21, but requirements provide for electronic posting.

Beginning June 21, 2010, contracting employers, with some exceptions,2 are required to post the Notice in "conspicuous places in and about [their] plants and offices where employees covered by the NLRA engage in activities relating to the performance of the contract, including in all places where notices to employees are customarily posted both physically and electronically." The Department of Labor's website includes a link that provides for electronic posting.

Additionally, where "a significant portion" of the contracting employer's workforce is not proficient in English, the employer must provide the Notice in the language that its employees speak. The rule includes a list of sources3 for translations of the Notice.

Recommendation: Review and Comply by June 21.

Contracting employers covered by Executive Order 13496 and its implementing rule should review the requirements of the rule promptly and comply by the June 21, 2010 deadline. A copy of the complete Final Rule is available in both the May 20, 2010 Federal Register4 and through the Department of Labor website.5

_________________________

1 75 Fed. Reg. 28368 (May 20, 2010) (to be codified at 29 C.F.R. Part 471).

2 See § 471.3 of the Final Rule.

3 See § 471.2(e) of th Final Rule.

See http://edocket.access.gpo.gov/2010/pdf/2010-11639.pdf.

See http://www.dol.gov/olms/regs/compliance/EO13496.htm.

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© 2021 Bracewell LLPNational Law Review, Volume , Number 161
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About this Author

Jim Kizziar, Employment law Attorney, Bracewell law firm in San Antonio TX
Partner

Jim Kizziar is a partner with Bracewell LLP in the firm's San Antonio, Texas, and Washington, D.C. offices. Practicing law since 1978, Mr. Kizziar represents and counsels owners of diverse business entities and management on all aspects of labor and employment law. His practice includes litigation before federal and state agencies and the courts and preventive counseling of management on issues such as discrimination, harassment, union organizing, and wage-hour issues.

Mr. Kizziar conducts employment law training for executives, managers, and...

210-299-3526
Leslie Selig Byrd, labor, employment, attorney, Bracewell law firm
Partner

Leslie Selig Byrd has more than 30 years of experience exclusively representing employers in labor and employment issues and controversies.

Leslie represents national and local clients before state and federal agencies. She has been involved in hundreds of administrative investigations, as well as administrative proceedings before the NLRB and the U.S. Department of Labor, Wage & Hour Division, Office of Federal Contract Compliance Programs and OSHA. Leslie defends employers in federal and state employment law motion practice and litigation...

210-299-3460
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